MICHAEL YARBOROUGH, WARDEN, PETITIONER
v. MICHAEL ALVARADO

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

In my view, Michael Alvarado clearly
was in custody when the police questioned him
(without Miranda warnings) about the murder of Francisco
Castaneda. To put the question in terms of federal laws
well-established legal standards: Would a reasonable
person in Alvarados position have felt
he was at liberty to terminate the interrogation and
leave? Thompson v. Keohane, 516 U.S. 99, 112
(1995); Stansbury v. California511 U.S. 318, 325
(1994) (per curiam). A court must answer this question
in light of all of the circumstances surrounding the
interrogation. Id., at 322. And the obvious
answer here is no.

I

A

The law in this case asks judges to
apply, not arcane or complex legal directives, but ordinary
common sense. Would a reasonable person in Alvarados
position have felt free simply to get up and walk out of the
small room in the station house at will during his 2-hour
police interrogation? I ask the reader to put himself, or
herself, in Alvarados circumstances and then answer that
question: Alvarado hears from his parents that he is needed
for police questioning. His parents take him to the station.
On arrival, a police officer separates him from his parents.
His parents ask to come along, but the officer says they may
not. App. 185186. Another officer says, What do we have here; we are
going to question a suspect. Id., at 189.

The police take Alvarado to a small
interrogation room, away from the stations public area.
A single officer begins to question him, making clear in the
process that the police have evidence that he participated in
an attempted carjacking connected with a murder. When he says
that he never saw any shooting, the officer suggests that he is
lying, while adding that she is giving [him] the
opportunity to tell the truth and tak[e] care of
[him]self. Id., at 102, 105. Toward the end of
the questioning, the officer gives him permission to take a
bathroom or water break. After two hours, by which time he has
admitted he was involved in the attempted theft, knew about the
gun, and helped to hide it, the questioning ends.

What reasonable person in the
circumstancesbrought to a police station by his parents
at police request, put in a small interrogation room,
questioned for a solid two hours, and confronted with claims
that there is strong evidence that he participated in a serious
crime, could have thought to himself, Well, anytime I
want to leave I can just get up and walk out? If the
person harbored any doubts, would he still think he might be
free to leave once he recalls that the police officer has just
refused to let his parents remain with him during questioning?
Would he still think that he, rather than the officer, controls
the situation?

There is only one possible answer to
these questions. A reasonable person would not have
thought he was free simply to pick up and leave in the middle
of the interrogation. I believe the California courts were
clearly wrong to hold the contrary, and the Ninth Circuit was
right in concluding that those state courts unreasonably
applied clearly established federal law. See 28 U.S.C. §
2254(d)(1).

B

What about the majoritys view
that fair-minded jurists could disagree over whether
Alvarado was in custody? Ante, at 10. Consider
each of the facts it says weigh against a finding
of custody:

(1) The police did not
transport Alvarado to the station or require him to appear at a
particular time. Ibid. True. His parents
brought him to the station at police request. But why does
that matter? The relevant question is whether Alvarado came to
the station of his own free will or submitted to questioning
voluntarily. Cf. Oregon v. Mathiason, 429 U.S. 492,
493495 (1977) (per curiam);California v.
Beheler, 463
U.S. 1121, 11221123 (1983) (per curiam);Thompson, supra, at 118 (Thomas, J., dissenting).
And the involvement of Alvarados parents suggests
involuntary, not voluntary, behavior on Alvarados
part.

(2) Alvarados
parents remained in the lobby during the interview, suggesting
that the interview would be brief. In fact, [Alvarado] and his
parents were told that the interview was not going
to be long.
Ante, at 1011 (citation omitted). Whatever was
communicated to Alvarado before the questioning began,
the fact is that the interview was not brief, nor, after the
first half hour or so, would Alvarado have expected it to be
brief. And those are the relevant considerations. See
Berkemer v. McCarty, 468 U.S. 420, 441
(1984).

(3) At the end of the
interview, Alvarado went home. Ante, at 11.
As the majority acknowledges, our recent case law makes clear
that the relevant question is how a reasonable person would
have gauged his freedom to leave during, not
after, the interview. See ante, at 9 (citing
Stansbury, supra, at 325).

(4) During the interview,
[Officer] Comstock focused on Sotos crimes rather than
Alvarados. Ante, at 11. In fact, the
police officer characterized Soto as the ringleader, while
making clear that she knew Alvarado had participated in the
attempted carjacking during which Castaneda was killed. See
App. 102103, 109. Her questioning would have reinforced,
not diminished, Alvarados fear that he was not simply a
witness, but also suspected of having been involved in a
serious crime. See Stansbury, 511 U.S., at 325.

(5) [The officer did not]
pressur[e] Alvarado with the threat of arrest and prosecution .
. . [but instead] appealed to his interest in telling the truth
and being helpful to a police officer.Ante,
at 11. This factor might be highly significant were the
question one of coercion. But it is not. The
question is whether Alvarado would have felt free to terminate
the interrogation and leave. In respect to that question,
police politeness, while commendable, does not significantly
help the majority.

(6) Comstock twice
asked Alvarado if he wanted to take a break. Ibid.
This circumstance, emphasizing the officers control of
Alvarados movements, makes it less likely, not
more likely, that Alvarado would have thought he was
free to leave at will.

The facts to which the majority
points make clear what the police did not do, for
example, come to Alvarados house, tell him he was under
arrest, handcuff him, place him in a locked cell, threaten him,
or tell him explicitly that he was not free to leave. But what
is important here is what the police did donamely,
have Alvarados parents bring him to the station, put him
with a single officer in a small room, keep his parents out,
let him know that he was a suspect, and question him for two
hours. These latter facts compel a single conclusion: A
reasonable person in Alvarados circumstances would
not have felt free to terminate the interrogation and
leave.

C

What about Alvarados youth? The
fact that Alvarado was 17 helps to show that he was unlikely to
have felt free to ignore his parents request to come to
the station. See Schall v. Martin,467 U.S. 253, 265
(1984) (juveniles assumed to be subject to the control of
their parents). And a 17-year-old is more likely than,
say, a 35-year-old, to take a police officers assertion
of authority to keep parents outside the room as an assertion
of authority to keep their child inside as well.

The majority suggests that the law
might prevent a judge from taking account of the fact
that Alvarado was 17. See ante, at 1314. I can
find nothing in the law that supports that conclusion. Our
cases do instruct lower courts to apply a reasonable
person standard. But the reasonable person
standard does not require a court to pretend that Alvarado was
a 35-year-old with aging parents whose middle-aged children do
what their parents ask only out of respect. Nor does it say
that a court should pretend that Alvarado was the statistically
determined average persona working, married,
35-year-old white female with a high school degree. See U.S.
Dept. of Commerce, Bureau of Census, Statistical Abstract of
the United States: 2003 (123d ed.).

Rather, the precise legal definition
of reasonable person may, depending on legal
context, appropriately account for certain personal
characteristics. In negligence suits, for example, the
question is what would a reasonable person do
under the same or
similar circumstances.
In answering that question, courts enjoy latitude
and may make allowance not only for external facts, but
sometimes for certain characteristics of the actor
himself, including physical disability, youth, or
advanced age. W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts §32, pp. 174179
(5th ed. 1984); see id., at 179181; see also
Restatement (Third) of Torts §10, Comment b, pp.
128130 (Tent. Draft No. 1, Mar. 28, 2001) (all American
jurisdictions count a persons childhood as a
relevant circumstance in negligence
determinations). This allowance makes sense in light of the
tort standards recognized purpose: deterrence. Given
that purpose, why pretend that a child is an adult or that a
blind man can see? See O. Holmes, The Common Law 8589
(M. Howe ed. 1963).

In the present context, that of
Mirandas in custody inquiry, the law
has introduced the concept of a reasonable person
to avoid judicial inquiry into subjective states of mind, and
to focus the inquiry instead upon objective circumstances that
are known to both the officer and the suspect and that are
likely relevant to the way a person would understand his
situation. See Stansbury, supra, at
323325; Berkemer, 468 U.S., at 442, and n. 35.
This focus helps to keep Miranda a workable rule. See
Berkemer, supra, at 430431.

In this case, Alvarados youth
is an objective circumstance that was known to the police. It
is not a special quality, but rather a widely shared
characteristic that generates commonsense conclusions about
behavior and perception. To focus on the circumstance of age
in a case like this does not complicate the in
custody inquiry. And to say that courts should ignore
widely shared, objective characteristics, like age, on the
ground that only a (large) minority of the population
possesses them would produce absurd results, the present
instance being a case in point. I am not surprised that the
majority points to no case suggesting any such limitation. Cf.
Alvarado v. Hickman,316 F.3d 841, 848,
851, n. 5 (CA9 2002) (case below) (listing 12 cases from 12
different jurisdictions suggesting the contrary).

Nor am I surprised that the majority
makes no real argument at all explaining why any court
would believe that the objective fact of a suspects age
could never be relevant. But see ante, at 1
(OConnor, J., concurring) (There may be cases in
which a suspects age will be relevant to the
Miranda custody inquiry). The
majority does discuss a suspects history with law
enforcement, ante, at 15a bright red herring
in the present context where Alvarados youth (an
objective fact) simply helps to show (with the help of a legal
presumption) that his appearance at the police station was not
voluntary. See supra, at 5.

II

As I have said, the law in this case
is clear. This Courts cases establish that, even if the
police do not tell a suspect he is under arrest, do not
handcuff him, do not lock him in a cell, and do not threaten
him, he may nonetheless reasonably believe he is not free to
leave the place of questioningand thus be in custody for
Miranda purposes. See Stansbury, 511 U.S., at
325326; Berkemer, supra, at 440.

Our cases also make clear that to
determine how a suspect would have gaug[ed] his
freedom of movement, a court must carefully examine
all of the circumstances surrounding the
interrogation, Stansbury, supra, at 322,
325 (internal quotation marks omitted), including, for example,
how long the interrogation lasted (brief and routine or
protracted?), see, e.g., Berkemer, supra,
at 441; how the suspect came to be questioned (voluntarily or
against his will?), see, e.g., Mathiason, 429
U.S., at 495; where the questioning took place (at a police
station or in public?), see, e.g., Berkemer,
supra,at 438439; and what the officer
communicated to the individual during the interrogation (that
he was a suspect? that he was under arrest? that he was free to
leave at will?) see, e.g., Stansbury,
supra, at 325. In the present case, every one of these
factors arguesand argues stronglythat Alvarado was
in custody for Miranda purposes when the police
questioned him.

Common sense, and an understanding of
the laws basic purpose in this area, are enough to make
clear that Alvarados agean objective, widely shared
characteristic about which the police plainly knewis also
relevant to the inquiry. Cf. Kaupp v. Texas, 538 U.S. 626,
629631 (2003) (per curiam). Unless one is
prepared to pretend that Alvarado is someone he is not, a
middle-aged gentleman, well-versed in police practices, it
seems to me clear that the California courts made a serious
mistake. I agree with the Ninth Circuits similar
conclusions. Consequently, I dissent.